Excerpt:(i) civil - promissory note - sections 9 (1), 36 and 2 (12-a) of stamp act, 1899, sections 69 and 70 of negotiable instruments act, 1881 and section 311 of succession act, 1925 - suit filed on basis of certain 'hundies' - alleged that 'hundies' were promissory notes and were insufficiently stamped - notification passed under stamp act provides for stamp duty for negotiable instruments - contented that pro notes have been sufficiently stamped as per said notification - notification validly issued - stamp duty affixed on documents proper and in consonance with notification.
(ii) notification - sections 9 (1) and 27 of stamp act, 1899 - notification specifying stamp duty alleged as not proper - contended that class of instruments to which it is applicable not mentioned - class of instruments.....m. seshachelapati, j. 1. this second appeal is against the decision of the learned additional district judge, east godavari, in a. s. 42 of 1953 on his file which in turn arises out of o. s. no. 25 of 1951 on the file of the subordinate judge's court, rajahmundry. 2. the defendants 1 and 2 in the suit are the appellants in this appeal. the 1st defendant is a registered partnership firm doing business at tade-pallingudam under the name and style of 'sree rama varaprasada rice mill and prabhat oil works.' the second defendant is the managing partner of the 1st defendant-firm. defendants 3 to 7 are the other partners of the firm. in this appeal they have been impleadcd as respondents 4 to 7. on 7-9-1947, the second defendant, who is the second appellant in this appeal, executed two hun-dies.....

Judgment:

M. Seshachelapati, J.

1. This Second Appeal is against the decision of the learned Additional District Judge, East Godavari, in A. S. 42 of 1953 on his file which in turn arises out of O. S. No. 25 of 1951 on the file of the Subordinate Judge's Court, Rajahmundry.

2. The defendants 1 and 2 in the suit are the appellants in this appeal. The 1st defendant is a registered partnership firm doing business at Tade-pallingudam under the name and style of 'Sree Rama Varaprasada Rice Mill and Prabhat Oil Works.' The second defendant is the Managing partner of the 1st defendant-firm. Defendants 3 to 7 are the other partners of the firm. In this appeal they have been impleadcd as respondents 4 to 7.

On 7-9-1947, the second defendant, who is the second appellant in this appeal, executed two hun-dies (Ex. A-1 and A-2) as the Managing partner of the 1st defendant-firm in sums of Rs. 2,000/- each in favour of one Sajjandas Khialdas, a banker doing money lending business at Rajahmundry for consideration. The hundies were payable on sight after 75 days. It is alleged that a contemporaneous agreement was also executed by the defendants on the same day agreeing to pay overdue interest at 15 per cent per annum. On 4-12-1947, a sum of Rs. 950/- was paid by the defendants and was duly appropriated towards the first of the two hundies.

The payee, Sajjandas Khialdas died on 4-9-1949, bequeathing all his properties, moveable and immove-able, to his wife Leelavathi Bai, in and by his will dated 30-5-1949. The said Leelavathi Bai, in her turn executed a will on 9-10-1949, bequeathing all her properties and outstandings, including the suit debts to her three daughters, who had been implead-ed as defendants 8, 11 and 12, in the suit. Under the will of the said Leelavathi Bai, the plaintiff and defendants 9 and 10 were appointed executors.

The suit for the balance due on the two hundies has been filed by the plaintiff as one of the executors, and a decree in favour of the plaintiff and defendants 9 and 10, the two other executors, has been prayed for, in the plaint.

3. The third defendant, one Pasala Satyanara-yana filed a written statement raising several defences. It was alleged that Ex. A-1 and A-2 are not hundies, but promissory notes, that they have not been properly stamped, that there was a material alteration in the suit documents, that the plaintiff has no locus standi as be was not the executor of the will of Sajjendas, that even otherwise since only one of the executors of the will of Leelavathi Bai had instituted the suit it was not maintainable, that the suit documents were executed at Tadepalli-gudem, that the sums due thereon were payable at Secunderabad and by reason thereof, the Court of the Subordinate Judge Rajahmundry had no jurisdiction, that Ex. A-1 and A-2 were not presented for payment at the proper place, that only 6 per cent interest could be allowed, and that in any case, the debt should be scaled down in accordance with the provisions of Act IV of 1938, The written statement filed by the 2nd defendant was adopted by defendants 1, 2, 5 and 8.

4. The learned Subordinate Judge framed the necessary issues and in a well considered judgment found that the suit documents are promissory notes though styled hundies, that they were sufficiently stamped, that they were drawn and payable in British India, that there was no material alteration, that the plaintiff had locus standi to institute the suit, that the wills of Sajjan Das and Leelavathi Bai were true, that letters of administration had been duly obtained for Leelavathi Bai's will, that the will of Sajjan Das did not require probate as being mafussil will, and that the suit documents were executed at Rajahmundry so that the Sub-Court, Rajahmundry had territorial jurisdiction to try and determine the suit. Therefore, the learned Subordinate Judge passed a decree in favour of the plaintiff and awarded interest at 6 per cent per annum.

5. In appeal to the District Court, East Goda-vari the only points that seem to have been raised and argued were : (i) whether the suit documents are properly stamped; (ii) whether the Subordinate Judge's Court at Rajahmundry had no jurisdiction to entertain the suit and (iii) whether the plaintiff had locus standi to file a suit. The learned Additional District Judge, who heard the appeal found all these points against the appellants and dismissed the appeal. Hence this Second Appeal.

6. Before me the main points raised and argu-ed are (i) the suit documents Ex. A-1 and A-2 are insufficiently stamped and (ii) that the plaintiff has no locus standi to maintain the present suit. I shall deal with these two points in the same order,

7. The two courts below have held that even though Ex. A-1 and A-2 are styled hundies, they are really promissory notes within the meaning of Section 2(22) of the Indian Stamp Act (Act 2 of 1899) read with Section 4 of the Negotiable Instruments Act 1881 (Act XXVI of 1881). The finding is not seriously assailed by either side and the entire argument has proceeded upon the footing that the suit documents are, and should be, treated as promissory notes. The learned Counsel for the appellants has contended that as they are promissory notes they have to be stamped as such.

Under Article 49(b) of the Indian Stamp Act, the proper stamp duty for promissory notes payable otherwise than on demand, is the same duty as on a bill of exchange for the same amount payable otherwise than on demand. Article 13(b) provides for the rate at which the stamp duty has to be paid for the bills of exchange payable otherwise than on demand, but not more than one year after the date of sight. The article provides for the duty ad valorem. It is not in dispute that Exs. A-1 and A-2 fall within the class of instruments whose value is between Rs. 1,600/-, but not exceeding Rs. 2,500/-.

That being so, the proper stamp duty that should have been paid on the promissory notes is Rs. 2-4-0 each. But they are stamped with only stamps of annas 6/- each. It is, therefore, clear that they are not prima facie duly and sufficiently stamped. But what is contended for by the learned Counsel for the Respondents and what has found acceptance by the Courts below, and in my opinion, rightly is that under the notification issued by the Central Government under Section 9 of the Stamp Act granting remissions in respect of the stamp duty, the proper stamp duty payable on Exs. A-1 and A-2 is only annas six each and that, therefore, they are sufficiently and properly stamped.

It is this finding of the Courts below that has been strenuously assailed before me. Before examining the contentions of the learned Counsel for the appellants, it would be useful to refer to the relevant sections of the Stamp Act and the notification. Section 9 is as follows ;

SECTION 9(1) :

'The Government may by rule or order published in the Official Gazette,

(a) reduce or remit, whether prospectively or retrospectively, in the whole or any part of the territories under its administration, the duties with which any instruments or any particular class of instruments, or any of the instruments belonging to such class, or any instruments when executed by or in favour of any particular class of persons, or by or in favour of members of such class, are chargeable, and

(b) provide for the composition or consolidation of duties in the case of issues, by any incorporated company or other body corporate, of debentures bonds or other marketable securities.'

Under Section 9, the Central Government has issued certain notifications. In amendment of the notification issued and published in the Gazette on 23-11-1940, the Central Government has issued a notification on 7-2-1942. The relevant portion of that notification is as follows :

'In exercise of powers conferred by clause (a) of Section 9 of the Indian Stamp Act, 1899 (II of 1899) the Central Government is pleased -

148. To reduce, with effect from the 13th January 1940, the duty chargeable on a promissory note made or drawn in and payable in British India including Berar where payable otherwise than on demand, but not more than one year after date of sight, to two annas for every one thousand rupees or part thereof of the amount of the promissory note. (Art. 49) No. 5, dated 23-11-1940 as amended by No. 1. D/- 7-2-1942.

149. To reduce the duty chargeable on a bill of exchange or a promissory note made or drawn in British India including Berar and payable in the areas mentioned in the Schedule hereto attached where payable otherwise than on demand, but not more than one year after date or sight, to two annas for over one thousand rupees or part thereof of the amount of the bill or the promissory note (Articles 13, 49)'.

8. It is contended that the aforesaid notification has no application to the present case. The learned Counsel for the appellants has raised six main points ;

1. The notification, providing for the remission can be made only by the Collecting Government and the Collecting Government is not the Central Government, but the State Government.

2. Under Section 9 of the Act, the remission could be granted only to a class of instruments, or to a class of persons, and that the notification is not in terms of Section 9 of the Act.

3. The suit documents do not show ex facie the facts and circumstances affecting the charge-ability of any instrument with duty as required by Section 27 of the Indian Stamp Act.

4. The place of payment is not disclosed in the suit instruments and so the exemption granted in the notification cannot be invoked.

5. The amount due on Ex. A-1 and A-2 is payable at Secunderabad, which is not a part of British India.

6. Even if the schedule to the notification comprehends the areas in the Hyderabad State over which the Crown representative exercises the jurisdiction, after the Indian Independence Act which came into force on 15th August, 1947, the notification must be deemed to be inoperative. The argument that the notification cannot be issued by the Central Government, as has been done in this case, is founded on a misapprehension. After the passing of the Government of India Act of 1935, Clause 12(a) to Section 2 has been introduced by the Government of India (Adaptation of Indian Laws) Order, 1937, which is in these terms :

'COLLECTING GOVERNMENT' means:

(a) In relation to stamp duty in respect of bills of exchange, cheques, promissory notes, bills of lading, letters of credit, policies of insurance, proxies and receipts, and in relation to any other stamp duty chargeable under this Act and falling within item 59 in List I in the Seventh Schedule to the Government of India Act, 1935, the Central Government;

(b) save as aforesaid, the Provincial Govt.

9. It would be seen that the provision aforesaid has two parts. In the first part it comprehends bills of exchange, cheques, promissory notes, bills of lading, letters of credit, policies of insurance, proxies and receipts. These are directly covered by item 57 in List I in the Seventh Schedule to the Government of India Act, 1935 which reads as follows :

'The rates of stamp duty in respect of bills of exchange, cheques, promissory notes, bills of lading, letters of credit, policies of insurance, proxies and receipts.'

The second part of Clause 12(a) of Section 2 refers to the fees in respect of any of the matters in the list, but not including fees taken in any court, Thus if the stamp duty is chargeable in respect of the instruments that fall within the scope of item 57 or item 59 of List I of the Seventh Schedule, the 'Collecting Government' means 'the Central Government'.

10. By the Adaptation of Laws and Orders of 1950 after the coming into force of the present Constitution of India Clause 12(a) of Section 2 of the Stamp Act hag been deleted and consequential changes have been made in Section 9(1) which now reads as follows ;

'The Government may, by rule or order publish in the Official Gazette:

(a) reduce or remit, whether prospectively or retrospectively, in the whole or any part of (the territories under its administration) the duties with which any instruments or any particular class of instruments, or any of the instruments belonging to such class, or any instruments when executed by or in favour of any particular class of persons, or by or in favour of any members of such class are chargeable, and

(b) provide for the composition or consolidation of duties in the case of issues by any incorporated company or other body corporate of debentures, bonds or other marketable securities.

(2) In this section the expression 'the Government' means :

(a) in relation to stamp duty in respect of billsof exchange, cheques, promissory notes, bills oflading, letters of credit, policies of insurance, transfer of shares, debentures, proxies and receipts andin relation to any other stamp duty chargeableunder this Act and falling within entry 96 in List Iin the Seventh Schedule to the Constitution, theCentral Government:

(b) Save as aforesaid, the State Government.'

11. Item 91 of List I of the Seventh Schedule is identical with item 57 of List I of tie Seventh Schedule of the Government of India Act of 1935. It is, therefore, clear that with respect to promissory notes, bills of exchange etc., the proper Government is the Central Government, both before and after the coming into force of the present Constitution of India. On 23-11-1940 when the notification providing for the reduction of the stamp duty was issued and on 7-2-1942 when it was amended, the proper authority to issue the notification is the Central Government.

I, therefore, hold that the notifications in question have been properly issued and by a proper authority. There is, therefore, no substance in the contention advanced by the learned Counsel for the appellants that the notification could only be issued by the Provincial Government or the State Government

12. The second point urged on behalf of the appellants is that the notifications providing for the remission are not in terms of section 9 of the Stamp Act, as they do not specify clearly the particular class of instrument or instruments executed by or in favour of any particular class of persons, or by in favour of any members of such class. This is a wholly unsustainable comment. The notification in terms refer to the duty chargeable on a bill of exchange or a promissory note made or drawn in British India, including Berar, and payable in the areas mentioned in the schedule.

The class of instruments has been specifiedwith particularity. The circumstances under whichthe reduction of duty chargeable on the said instruments is also clearly indicated. There is no substance in the contention raised by the learnedCounsel.

13. The third argument of the learned Counsel is that the suit documents do not reveal the necessary particulars' as required under Section 27 of the Act. It is urged that unless those particulars are specified, the instruments will have to be stamped on the value of the consideration set forth on the instrument. I am unable to see any force in this contention. Section 27 reads as follows :

'The consideration (if any), all other facts and circumstances affecting the chargeability of any instrument with duty, or the amount of the duty with which it is chargeable, shall be fully and truly set forth therein'.

The intendment of that section is obvious. It is for knowing whether the stamp duty payable in accordance with the requirements of the Stamp Act has been duly paid or not. The only question, therefore, is whether the instrument falls within the scope of the notification providing for remission. The details necessary for invoking that notification are, in my view, present on the face of! the instrument. The suggestion that the instruments ' themselves should contain a reference to the notifi-cation seems to be wholly unwarranted either by the express language of Section 27 of the Act, or by its necessary intendment,

14. The fourth argument is that the place of payment is not disclosed in the suit documents and, therefore, the notification providing for remission cannot apply. Exs. A-1 and A-2 were drawn or executed in British India. According to the plaintiffs they were drawn and executed at Rajahmundry. According to the defendants they were drawn and executed at Tadepalligudam. In either view they were drawn and executed in British India.

15. The next question is what is the place where they should be presented for payment. According to the defendants, there was a contemporaneous agreement providing for the payment to be made at Secunderabad. It is contended that Secun-derabad is not part of British India and, therefore, the notification providing for the remission would not apply. A large part of the arguments of the learned Counsel for the appellants was devoted to show that Secunderabad like several other cantonments, civil and military stations is not part of British India.

16. In order to sustain this contention, it seems to me that the defendants have to prove by positive evidence that there was an agreement between the parties that the moneys under Exs. A-l and A-2 were payable at Secunderabad. I say so because the instruments do not contain any reference to place or payment or presentment of the instrument for payment. Under Section 70 of the Negotiable Instruments Act, where a promissory note or a bill of exchange not made payable at a specfiied place as required under Section 68 or 69, should be presented for payment at the usual place of business or at the usual residence of the maker, drawee, or acceptor thereof, as the case may be.

It is not in dispute that the place of business of the maker is Tadepalligudam in British India. It contrary to the provisions of Section 70 of the Negotiable Instruments Act, the defendants set up a case as to a specified place of payment or presentment, the onus of proving so rests on them and that burden has not been discharged.

17. Therefore, it seems to me that it is wholly unnecessary to embark upon an enquiry as to whether Secunderabad is a part of British India or not

18. In the absence of any specification of the place of payment, the provisions of Section 70 of the Negotiable Instruments Act would apply, and no question of the suit instruments being payable outside British India would at all arise. But even so, I may refer to the contention raised on behalf of the appellants.

19. It is stated that Secunderabad is not a part of British India, and in support of that contention reliance is placed on Hossain Ali Mirza v. Abid Ali Mirza, ILR 21 Cal 177. British India is defined in Section 311(a) of the Government of India Act of 1935, which reads as follows :

'British India means all the territories for the time being, comprised within the Governor's provinces and the Chief Commissioner's provinces.'

It is contended that Secunderabad is not a territory comprised within the Governor's provinces or the Chief Commissioner's provinces. But the answer to this criticism is that in schedule to the notifications referred to supra, it is clearly stated that the areas to which the said notifications apply comprise the areas in the Hyderabad State over which the Crown representative exercises jurisdiction, (vide schedule to the notification item 71. The relationship between the Crown in England and the various native States of India have been regulated by treaties, engagements and sanads, and by various precedents and conventions, by reason of acts done and acts suffered through a long course of historic evolution.

Various treaties were made between the East India Company and the native Rulers containing covenants and stipulations as to their mutual relations. When the Crown of England took over the territories belonging to the East India Company and assumed full sovereignty over its dominions the Indian native States came directly under the suzerainty of the British Crown and the Governor-General was also the Viceroy representing the Crown in respect of their relations with the native States. By the Government of India Act of 1935 the Governor-General's functions were divided and in his relations with the Governor's provinces and the Chief Commissioner's provinces he was designated as the Governor-General, and in respect of his relations with the native States, he was designated as the Crown representative. The Crown representative exercised the authority of the Crown in respect of the native States.

20. By a treaty entered into between the Nizam of Hyderabad and the East India Company in 1798, the Nizam agreed for the fixing of a place within the territories of the Hyderabad State as a cantonment for the British Government. Secunderabad was the place fixed upon under the said treaty and over the cantonment area the British power exercised its jurisdiction. After the Government of India Act of 1935, the authority of the Crown in matters relating to the native States was exercised by the Crown representative and, therefore, Secunderabad is an area over which the Crown representative exercised his jurisdiction,

21. It is unnecessary for me to refer to the number of cases cited by the learned counsel for the appellants in support of the proposition that the civil and military stations called cantonments, which were set apart by the rulers of the several native States for the location of the British army is or is not British India. I say so because, the real question is whether in respect of the areas so set apart under the treaties, the Crown representative has jurisdiction or not. That, over such areas the Crown representative has jurisdiction is obvious and cannot be disputed. Therefore, the notification in respect of the remission of the stamp duty chargeable on the instruments read with item 7 of the schedule to the notification referred to supra applies.

22. The last argument that in any case by reason of the Indian Independence Act, the Crown representative ceases to function and there was an abrogation of the treaty is of little consequence, as the question really is whether on the date on which the notification was made, it was competent or not. That was competent on the date is beyond dispute. The territory having been definitely described, the change of jurisdiction by a supervening act would not affect the position. As I said supra, this discussion is wholly unnecessary, because it is founded on assumption that the money under Ex. A-1 and A-2 was payable at Secunderabad.

That fact had not been established. There is no evidence and the man who could speak to it, the second defendant, and the maker of the notes who could well have spoken to the agreement, has not chosen to go into the box and say so. A suggestion has been made that inspite of being called upon to do so, the plaintiffs had not produced the alleged contemporaneous letter wherein it is said the place of payment has been agreed to be in Secunderabad. The plaintiffs have denied the existence of any such agreement. There is no other evidence. The onus of proving that money was payable at Secunderabad rests heavily on the defendants.

As the two instruments do not contain a specific reference to the place of presentment, it was the duty of the defendants, therefore, to have given evidence as to the alleged agreement that the money should be payable at Secunderabad. There is therefore no evidence in this case to displace the presumption embodied in Section 70 of the Negotiable Instruments Act. For the above reasons, I think there is no substance whatever in the contention of the learned counsel that the place of payment was at Secunderabad, and, therefore, the notification would not apply at any rate after 15-8-1947.

23. In my view, the objection as to the, insufficiency of the stamp duty on Ex. A-1 and A-2 cannot be raised in the Second Appeal, The trial Court has admitted the two documents in evidence and has given a decree. In such circumstances, I am of opinion that Section 36 of the Stamp Act has direct application. The section reads as follows:

'Where an instrument has been admitted in evidence, such admission shall not, except as provided under Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped'.

Section 61 provides for revision of certain decisions of Courts regarding the sufficiency of the stamp duty paid on instruments. It does not however, affect the provisions of Section 36. A court acting under Section 61 has to regard the instrument as admissible in evidence and at the same time to determine the sufficiency of the duty. The object of Section 61 is the protection of the Government revenue. For that purpose the appellate court or a court of reference of its motion or on the application of a collector, may take into consideration the order of the Subordinate Court and determine whether the Government revenue has suffered mid whether a higher duty and penalty than that required by the Court of first instance ought to have been demanded from the person filing the instrument.

This provision does not take away the finality provided for in Section 36 of the Stamp Act as to the ad-mission of instruments by the Trial Court. In Ven-kata Reddi v. Hussain Setti, AIR 1934 Mad 383, a bench of the Madras High Court has hold that when once a document has been admitted in evidence after levying penalty on the foot of its being a bond, even though it may be a debatable point the matter must be deemed to have been concluded and the admission of the instrument by the trial court in evidence cannot be questioned.

It was urged in that case by the learned Advocate General that Section 36 would not apply to cases where a document in question forms the foundation of the suit. That argument was, if I may say so with great respect, rightly rejected. To the similar effect are the decisions in Ramaswami v. Ramas-wami ILR 5 Mad 220, Venkatrama Aiyar v. Chella Pillai, AIR 1921 Mad 413 and Venkateswara Iyer v. Ramanatha Dheekshitar, AIR 1929 Mad 622. Following the said authorities, I hold that inasmuch these Instruments have been admitted in evidence, it is no longer open to the appellants to raise the question as to the insufficiency of the stamp duty paid on the instruments.

24. The nest question argued by the learned counsel is that the plaintiff has no locus standi. The argument is that trie payee under the two instruments is Sajjandas. He died on 4-9-1949 bequeathing all his properties, moveable and immoveable to his wife Leelavathi Bai under a will dated 30-5-1949. It is contended that under that will Mool-chand, who is the 10th defendant in the suit, has been appointed as executor by implication. It is suggested that Moolchand was the only person that ran collect the debt.

That will depend upon whether Moolchand should be regarded as an executor having regard to the terms and tenor of the will of Sajjandas. On a fair reading of the recitals in the will. It is clear that the entire property of Sajjandas, both moveable and immoveable, and all the amounts due from the Insurance Companies, and the cash balances in the various banks were bequeathed absolutely to Leelavathi Bai. Further she has been directed to carry on solely the business of banking which the testator was carrying on and realise and take absolutely all the outstandings due to the said business.

After the said disposition, there is a clause that Moolchand, the agent of the testator, has been empowered to continue the business, collect the outstandings, and pay the same to the wife of the testator. All that Moolchand was directed to do under the will is to collect the outstandings of the business and pay it over to the wife of the testator. The estate of Sajjandas comprised various moveable and immoveable properties and the business was one of his assets. A direction in the will that the 10th defendant should collect the outstandings of the business and pay it over to the wife must be read with the previous clause, whereunder the testator definitely and expressly bequeathed the entire business of money lending to his wife, including the power to realise and take absolutely all the outstandings due to the said business.

The courts below have, in my view, properly construed the terms of the will and have come to the conclusion that Moolchand cannot be regarded as an executor appointed expressly or by implication. That being so, the position is that the entire property was not only bequeathed absolutely to Leelavathi Bai, but she seems to have been appointed by implication as the sole executrix. The said Leelavathi Bai died bequeathing all her properties, absolutely in favour of her three daughters, defendants 8, 11 and 12 and appointing the plaintiff and defendants 9 and 10 as executors of her will.

It is not in dispute that the letters of administration with a will attached was granted to the plain-tiff and defendants 9 and 10 by the learned Subordinate Judge of Trichnopoly on 30-7-1951 in O. P. No. 70 of 1951 on his file. The letters of administration with the will annexed have been marked as Ex. A-5 in the case. Therefore, the plaintiff who was one of the executors is competent to file the suit.

25. It is argued by the learned counsel for the appellants that in any event a suit by one of the executors is not maintainable. That the plaintiff is an executor is beyond dispute, and the decree he has prayed for is not in his name only, but in the name of the plaintiff and defendants 9 and 10. There is no substance in this contention.

26. In the result, I hold that the decision of the Courts below is correct and this appeal should fail. It is accordingly dismissed with costs. No leave.